The Ombudsman's final decision
Summary: We will not investigate Mr B’s complaint about the Council failing to maintain the road where he lives. This is because it is reasonable for Mr B to pursue this matter at court.
The complaint
Mr B complains the Council is failing to maintain the road and pavements on the road where he lives. Mr B says this is causing damage to vehicles, and residents risk injury when using the pavements. Mr B would like the Council to re-surface the road and do the required repairs.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
The Act says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
How I considered this complaint
I considered information provided by Mr B.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council accepts there are defects on Mr B’s road, but says it will only take action when a defect is unsafe. The Council says the defects on Mr B’s road do not currently meet this threshold.
We take the view that the courts are in the best position to decide whether a highways authority has met its statutory duty to maintain a highway. The Council as a local highways authority has a statutory duty to maintain adopted streets. The Council is expected to routinely monitor the state of highways and carry out repairs where necessary. But, the level of maintenance, frequency of inspection, and threshold for repair is not set out in law and is open to interpretation.
If a person considers that a highways authority has failed to maintain a highway it is responsible for, the person affected can apply to the magistrates court for an order to be made under section 56 of the Highways Act 1980.
This order requires the highways authority to carry out the work needed to the highway.
If the highways authority does not respond in time or does not accept it is responsible for maintaining the highway, the person may apply to the crown court for such an order. Mr B and other affected residents may use this process to try to get the Council to repair the road. I find it is reasonable for Mr B to do this.
The court is in the best position to decide whether the Council has met its legal duty to maintain the highway. Also, unlike the Ombudsman, the court can order the Council to do the required work.
So, we will not investigate this complaint.
Final decision
We will not investigate Mr B’s complaint because it is reasonable for him to pursue this matter at court.
Investigator's decision on behalf of the Ombudsman